Citation Nr: 9909197
Decision Date: 03/31/99 Archive Date: 06/24/99
DOCKET NO. 85-06 249 DATE MAR 31, 1999
On appeal from the Department of Veterans Affairs Regional Office
in St. Petersburg, Florida
THE ISSUE
Entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Counsel
DECISION TO VACATE
The veteran had active service from October 1954 to February 1975.
On May 20, 1985, the Board issued a decision denying a total
disability rating based on individual unemployability due to
service-connected disabilities.
In letters dated in August 1984, individuals from two medical
facilities essentially related that the veteran would not be able
to work for their facilities due to his back disability. In another
letter dated in August 1984, the manager of a mobile home business
also related that he could not hire the veteran because of his
physical condition and reported that the position in question
required extensive walking, sitting and long hours.
Additionally, United States Air Force hospital records dated in
February 1983 show that the veteran reported that he was unemployed
secondary to back pain. Also, a United States Air Force medical
record dated in July 1984 shows that the veteran reported limited
activity and that his pain increased when he was active. The
neurosurgeon who saw the veteran in July 1984 wrote a letter in
September 1984, in which he recommended that the veteran not engage
in any strenuous activity or prolonged sitting or standing.
In its May 1985 decision, the Board noted that the veteran's back
disorder would prevent types of employment requiring strong
physical labor and concluded that it had not been shown that his
service-connected disabilities precluded all forms of employment.
However, the Board did not address the fact that there was medical
evidence, discussed above, which supported finding that the veteran
was precluded from employment which required prolonged sitting or
standing.
Under the circumstances discussed above, the Board finds that the
May 1985 Board decision should be vacated in order to ensure due
process. Accordingly, the Board's decision of May 20, 1985, is
hereby vacated in accordance with the provisions of 38 C.F.R.
20.904 (1998).
HOLLY E. MOEHLMANN
Member, Board of Veterans' Appeals
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